R v Arthur [2017] ACTSC 23

Crimes Act 1914 (Cth) part 1B

Crimes Act 1900 (ACT) s 65

Crimes (Sentencing) Act 2005 (ACT)

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R v De Leeuw [2015] NSWCCA 183

R v Harrington [2016] ACTCA 10; (2016) 11 ACTLR 215

Commonwealth Director of Public Prosecutions (Crown)

1. On 28 October 2015, the Queensland Police service gave a referral to the Australian Federal Police as a result of a controlled operation to gain evidence involving child abuse and child exploitation material.

2. That referral was a result of the fact that, on 25 October 2015, an operative of the Queensland Police Service had engaged in an online chat conversation with William Arthur, the offender, during which conversation the offender transmitted 25 image files and 1 video file to that operative.

3. Thereafter, the Australian Federal Police took over the further investigation of the matter. Officers executed a search warrant on the premises at Flynn, ACT at which the offender resided.

4. As a result of the execution of the search warrant and further investigations including an analysis of computers and an Iphone, the offender was arrested and charged on 29 October 2015 with a number of offences.

5. The offender was not granted bail and defended the charges. He was committed to the Supreme Court for trial which was fixed to commence on 12 December 2016.

6. On 23 November 2016 the offender was arraigned before Murrell CJ and pleaded guilty to the following charges:

Between about 28 November 2012 and about 25 April 2014, at Canberra in the Australian Capital Territory, William Noel Arthur transmitted material, using a carriage service, the material being child pornography material, contrary to subsection 474.19(1) of the Criminal Code 1995 (Cth).

On 25 October 2015, at Canberra in the Australian Capital Territory, William Noel Arthur transmitted material, using a carriage service, the material being child pornography material, contrary to subsection 474.19(1) of the Criminal Code 1995 (Cth).

On 29 October 2015 at Canberra in the Australian Capital Territory, William Noel Arthur did intentionally possess child exploitation material, contrary to section 65 of the Crimes Act 1900 (ACT).

7. I interpolate to record, at this point, that the three counts in the indictment encompass all of the offending that was before the Magistrates Court.

8. The maximum penalty for an offence under s474.19(1) of the Code is 15 years imprisonment. The maximum penalty for an offence under s65 of the Act is 7 years imprisonment. I take note of these penalties in accordance with Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [30]- [31].

9. Two different sentencing regimes are engaged; being Part 1B of the Crimes Act 1914 (Cth) and the Crimes (Sentencing) Act 2005 (ACT).

10. The offender did not give evidence before me on sentence.

11. One method of assessing the gravity of the images, documents and videos depicting activity involved in child pornography, is by the categories described in the Australian Victim Image Library which are as follows-

CAT 1 - Depictions of children with no sexual activity;

CAT 2 - Non-penetrative sexual activity between children; or solo masturbation by a child;

CAT 3 - Non-penetrative sexual activity between adult(s) and child(ren);

CAT 4 - Penetrative sexual activity between children or adult(s) and child(ren);

CAT 6 - Animated or virtual depictions of children engaged in activity covered by categories CAT 1 to CAT 5.

12. Using those categories, the agreed statement of facts records the analysis of each charge as set out in the tables below.

13. The files relating to charge 1 (transmit child pornography material between about 28 November and about 25 April 2014) are classified as:

14. The files relating to charge 2 (transmit child pornography material on 25 October 2015) are classified as:

15. It is instructive to set out here a further description, as described in the agreed statement of facts, of some of the items forming the subject of charge 2 for the purpose of more fully understanding the nature of the offending for which the offender is to be sentenced. The first six images are representative. They are-

!!YESDADDY.jpg Image depicting young female child approximately 10-11 years of age. The child is standing outdoors wearing a pair of white underpants only and her budding breasts are exposed to the camera.

Facialcum (2).jpg An image depicting a young female child performing oral sex on an unknown male.

1 - Copy (2).jpg An image depicting a young female child approximately four to five years of age. The child has her right hand wrapped around an erect penis of an adult male which is sticking out of a pair of blue jeans.

2teen fem(2).jpg An image depicting a young female child approximately 5 years of age. The child is naked on her back and has her legs spread apart for the camera. An unknown person has their index finger of their left hand inserted into the vagina of the child.

ABC-00002 08-30-46.jpg An image depicting a young female child approximately four to five years of age. The child is naked and is performing oral sex with an unknown male.

ABC-00006(1).jpg An image depicting a young female child approximately three or four years of age. The child is naked from the waist down and is sitting on the thighs of an unknown male. The young female child has the adult males erect penis between both her hands.

16. The files relating to charge 3 (intentionally possess child exploitation material on 29 October 2015) are classified as:

17. There is now a body of propositions, established at the appellate level, which applies to sentencing for child pornography offences. It is convenient to set out these propositions from R v De Leeuw [2015] NSWCCA 183 at [72]-

(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]- [24]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29].

(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:

(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

(ii) the number of items or images possessed;

(iii) whether the material is for the purpose of sale or further distribution;

(iv) whether the offender will profit from the offence;

(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;

(vi) the length of time for which the pornographic material was possessed: R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 49 [99]; DPP (Cth) v D'Alessandro at 483-484 [21]; DPP (Cth) v Guest at [25].

(c) General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]- [36]; DPP (Cth) v D'Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34].

(d) Less or limited weight is given to an offender's prior good character: R v Gent at 44 [65]; DPP (Cth) v D'Alessandro at 483-484 [21]; Mouscas v R [2008] NSWCCA 181 at [37].

(e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Asheton v R at 246-247 [35]-[36].

(f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: Mouscas v R at [31]; R v Booth at [29].

(g) The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40].

(h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D'Alessandro at 484 [23].

(i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending: R v Coffey at 552 [30].

18. One matter in favour of the offender is that the number of images, videos and documents he had access to, was, by comparison to other like offenders, relatively modest.

19. Apart from the fact of there being 23 email transmissions to 3 email addresses involved in charge 1, there is no detail as to whom the material was sent and for what purpose. It is a fair inference that files were transmitted between like- minded individuals. There is no evidence that money changed hands.

20. Also to be taken into account is the fact that the median category of images was somewhere near category 3 or 4.

21. The offender is now 31 years of age. He was born in Canberra in difficult family circumstances but completed Year 12 before entering the work force where he has undertaken a variety of jobs including security work, carpentry, driving and field work. He was married for a 14 month period which, he reported, ended owing to his wife's infidelity.

22. The offender has had an on-going battle with alcohol which commenced at the age of 16 and he described himself to the ACT Corrective Services as a functional alcoholic. His counsel described alcohol as a "demon for a good many years." Whilst in custody the offender completed the Alcohol and Other Drug First Steps program on 14 December 2016 but told ACT Corrective Services that he was ambivalent about continuing counselling when he is released from custody.

23. The offender also has suffered from depression for many years and is on anti-depression medication for that illness.

24. I accept that both issues are not minor and that the offender, in his own interests, should accept help and treatment for them with a view to decreasing his vulnerability towards depression and alcoholism.

25. I have carefully considered the relationship between these two on-going disabilities and the offending. I can find no direct causal relationship between the two on-going disabilities and the offending. It was put to me, not as cause and effect but as an explanation that the offending occurred at a time when the offender was particularly under the influence of these disabilities. If it is relevant to sentence, I cannot find this proposition made out on the evidence. The evidence as to the timing of events is too unspecific and some evidence is contrary to this proposition.

26. I do accept that a person with a vulnerability to depression will find prison more onerous than an inmate without mental health issues and I take that into account.

27. Of more concern is what the offender told ACT Corrective Services in January 2017. Under a heading "Attitude to Offences" that Service reported-

Although Mr Arthur agreed with the statement of facts, he minimised his actions by claiming he harmed no one and that child exploitation material will always exist and should therefore not be a focus for law enforcement. He expressed no empathy for the children in the images and claimed victimisation is beneficial for the human race.

28. In an interview with police in October 2016 the offender gave the following answers to questions-

A: Anyone who tells you they are not is lying. Would I ever act on it? No.

Q: Mate, earlier on the tape I asked you if you were sexually attracted to children and you said anyone that says they're not is lying. They were your words, "Anyone who's not who says they're not is lying"

A: Yeah. It's a biological imperative for the male species to be attracted to a younger, younger mate.

29. ACT Corrective Services, under the heading "Opinion", wrote-

Mr Arthur is considered to be at high risk of general offending. This Service found it concerning that Mr Arthur has again offended in this manner, despite previous offered interventions. Of equal concern is his attitude towards the current offences. His repeat offending, poor attitude to the offence and prior convictions for failing to comply with his CSORT obligations raise concerns for community safety and indicate Mr Arthur has little regard for societal conventions.

30. The matters on the offender's record relevant to sentence are-

9 September 2011 Possess Child Pornography. (Sentenced to 5 months full time imprisonment from 5 August 2011 to 4 January 2012 with balance of 5 months suspended on entry to good behaviour order for 2 years.)

29 May 2014 Fail to report change of details-child sex offender

29 May 2014 Fail to Report Annually-child sex offender

3 June 2015 Fail to report change of details-child sex offender

19 April 2016 Possess Knife without reasonable excuse (Sentenced to 1 month imprisonment)

31. The pleas of guilty to the three counts in the current indictment constitute breaches of good behaviour orders imposed on 9 September 2011 and 3 June 2015.

32. Little lenience can be given to the offender on the basis of this record.

33. As noted above, the offender stands to be sentenced under two different regimes. Counsel for the Crown submitted that under the federal regime no discount could be given for a plea of guilty which had only utilitarian value. He relied upon Cameron v The Queen (2002) 209 CLR 339 at [11]-[15] and R v Harrington [2016] ACTCA 10; (2016) 11 ACTLR 215 at [38] and [132]. What was necessary to attract a discount was for there to be findings where-

c) It shows a willingness to facilitate the course of justice

Counsel for the offender, properly, did not rely on any of these matters but submitted that the law is not so confined.

34. I am compelled by precedent to apply the law in Cameron and Harrington to the federal offences and I will do so.

35. In the case of the territory regime, a discount could be given, in the circumstances of this case, for simply saving the community the expense of the actual trial. (Harrington at [27].) The strength of the case was overwhelming. I propose to allow approximately 10% discount on the territory offence.

36. As was set out above, the offender was sentenced to imprisonment on 9 September 2011. The sentence was for 5 months full time imprisonment from 5 August 2011 to 4 January 2012 with a balance of 5 months suspended on entry to good behaviour order. The good behaviour order expired on 4 January 2014. The offender has pleaded guilty to an offence occurring within that time period. The offence to which he has pleaded guilty is of a like nature to the one on which he was given a suspended sentence and no other matters of mitigation are put forward. In the circumstances I propose to impose a sentence equal to the suspended period but to be served concurrently with the new sentences.

37. In the sentencing proceedings in 2011, for the offence of possession of child pornography, the offender made a case by way of what he said to the author of a presentence report and from his counsel, along the lines that he had acquired an insight into his behaviour, had some understanding as to how his actions affected victims, felt shame in relation to his behaviour and expressed a willingness to participate in rehabilitative courses. This case found favour with the Court and was reflected in the outcome of those proceedings. It is not necessary to make a finding that this case put forward at the time was made only out of self interest to best accommodate the circumstances which he was facing. I am, however, quite satisfied that is not the situation now.

38. I find that there are poor prospects for rehabilitation of this offender. In particular, I refer to the facts that the offender is now 31 years old, he has been previously imprisoned for the same offence for which he is to be sentenced, he is not committed to helping himself diminish the impact of alcoholism in his life and his perception of his own activities and thought processes appear to be entrenched in a belief that his actions and thoughts are rationally and morally defensible.

Crimes (Sentencing) Act 2005 (ACT) and Crimes Act 1914 (Cth)

39. In coming to the sentences, I have had regard to the various considerations set out in the two regimes. I have had regard to the propositions from R v De Leeuw [2015] NSWCCA 183 at [72]. In particular, I have given particular weight to the principles of general and specific deterrence.

40. It must be made clear that the offender is being sentenced for transmission of child pornography material and possession of such material and not for any other offence and not for holding beliefs and views on the subject of children.

41. I have had regard to the principles set out in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62-63 in the process of both structuring the sentences and then reviewing the overall result to determine that the result adequately reflects the totality of the criminality involved.

42. I find that no other sentence is appropriate other than full time imprisonment.

43. On the count that between about 28 November 2012 and about 25 April 2014, at Canberra in the Australian Capital Territory, you transmitted material, using a carriage service, the material being child pornography material, contrary to subsection 474.19(1) of the Criminal Code 1995 (Cth) you are convicted and sentenced to a term of 21 months imprisonment commencing on 29 October 2015 and expiring on 28 July 2017.

44. On the count that on 25 October 2015, at Canberra in the Australian Capital Territory, you transmitted material, using a carriage service, the material being child pornography material, contrary to subsection 474.19(1) of the Criminal Code 1995 (Cth) you are convicted and sentenced to a term of 15 months imprisonment commencing on 28 July 2017 and expiring on 27 October 2018.

45. I order, with respect to the offences under the Criminal Code, that the period commencing 29 October 2015 and expiring 28 September 2017 will be served by way of full time imprisonment, with the balance suspended upon you entering into a recognizance in sum of $500 to be of good behaviour for 2 years from 28 September 2017 with the following conditions:

i. you accept the supervision of ACT Corrective Services or its delegates for a period of 2 years or such lesser period as deemed appropriate by the supervising officer; and

ii. you undertake such assessments, programs or treatment as directed by ACT Corrective Services, particularly to address issues relating to sex offending.

46. On the count that on 29 October 2015 at Canberra in the Australian Capital Territory, you did intentionally possess child exploitation material, contrary to section 65 of the Crimes Act 1900 (ACT) you are convicted and sentenced to imprisonment for 3 months and 18 days. This sentence is to commence on 28 April 2017 and expire on 14 August 2017.

47. I cancel the good behaviour order made by the Supreme Court on 9 September 2011 and impose the suspended sentence imposed for the offence, being a period of 5 months. That sentence will be backdated to 29 October 2015 and expire on 28 March 2016.

48. I order that the following items be forfeited to the Commonwealth-

b) Panasonic 64 MB SD Card bearing number BK3EC010737

c) Black Thermal "Take" computer tower, components and storage device recorded as item 166329/003

I certify that the preceding [48] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.